On July 4, 2023, a federal judge handed down a sweeping injunction against multiple government agents – and agencies – involved in censorship of First Amendment protected speech on a wide variety of subjects. Separately, a private legal advocacy group has sued many non-government organizations (NGOs) also involved in this campaign of censorship. But, except for one independent journalist, no one has sued the social media companies that carried out this censorship. True, they carried it out at the behest – indeed, in response to the threats – of the government agents and agencies. (This also includes the indirect threats of the NGOs, with whom the government instructed them to cooperate.) But that cannot excuse them, because other social media companies refused, point-blank, to oblige any of these defendants. Furthermore, the preliminary injunction might have flaws in it that will let the government actors continue their acts, though perhaps with greater difficulty than before.
The government truth cops
Judge Terry A. Doughty is the Chief Judge of the United States District Court for the Western District of Louisiana. He has, since the filing of the case of Missouri v. Biden, been hearing that case. On March 20, Judge Doughty denied a government motion to dismiss the case. He then held a hearing on May 26 for the preliminary injunction he handed down two days ago.
In addition to his seven-page order, Judge Doughty also handed down a 155-page Memorandum Ruling in the case. The seven-page order lists not only specific Cabinet departments and three-letter agencies, but also specific Secretaries, deputy or undersecretaries, agency heads, and other Department and agency staff. Furthermore the order enjoins nearly all the conduct that various Twitter Files threads have documented. This includes attempts to pressure social media companies into changing their guidelines and content standards.
The judge did not enjoin any such contacts with regard to criminal activity, national security threats, or “vote suppression.” That last includes deliberate attempts to mislead voters about voting procedures, polling place hours, and the like. Because he did not do so, the consensus of several interested Twitter users who discussed the Memorandum Ruling for three hours yesterday is that the government likely cannot win on appeal. Judge Doughty addressed every legitimate concern they might have had. So neither the Fifth Circuit nor the Supreme Court will cut the government any more slack. But they’re appealing anyway.
At last report Judge Doughty has not stayed his injunction.
Private and semi-private truth cops
But another set of truth cops is also before Judge Doughty’s court. America First Legal filed their lawsuit against them two months ago.
The names of the defendants in this second case should be familiar to all Twitter Files viewers. Perhaps the three-letter agencies (and one four-letter agency, CISA) were the official truth cops. But they had the help of a private auxiliary of truth cops. They include the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, Graphika, and DFRLab.
Besides this lawsuit, Children’s Health Defense, TrialSite, Creative Destruction Media, Joseph R. Mercola, D.O., and Ty and Charlene Bollinger have sued four major legacy media organs. Court Listener maintains a docket page on this case. The plaintiffs filed it in the U.S. District Court for the Northern District of Texas (Amarillo Division). At last report, Judge Matthew Kacsmaryk, of that division, transferred the case out – to the Southern District of New York. That happened on May 12, 2023. But subsequently, the New York court transferred the case yet again – to the Western District of Louisiana, Monroe Division. Which is to say, Judge Doughty’s court. (See the docket page.) Thus Judge Doughty is hearing three cases against various censorship actors.
That leaves Laura Loomer’s RICO lawsuit against Meta (Facebook and Instagram), and Twitter. She filed that case before Elon Musk bought the company. But since then, Musk merged Twitter into a new company, which he calls X.
Where we stand
Again, Judge Doughty is hearing three of four known cases against various players in the great censorship drama. Thus far, no one is suing Alphabet, Inc. (Google, YouTube) or Spotify (which also owns Pinterest).
Judge Doughty enjoined many government agents and agencies for running, as he called it, “an Orwellian ‘Ministry of Truth.’” Indeed he found the plaintiffs are alleging “the most massive attack against free speech in United States’ history.” He offered detailed charges against five broad categories of defendants, from the White House down.
But he didn’t have nearly such harsh words for the social media giants themselves. Meta, Twitter, Alphabet, and Spotify, he found likely not guilty of conspiracy, but obeying coercive orders. Indeed the government tried to claim that Big Tech would have acted as they did even without the government’s suggestions. Judge Doughty was having none of that. The government threatened them with regulatory sanctions, including changes to Section 230 of the Communications Decency Act. According to Section 230, at least in theory, what the moderators say, goes.
But in finding the government uniformly guilty of applying coercion, Judge Doughty seemed to let the platforms off the hook. Now even he recognizes that the truth cops could never operate without their snitches and facilitators. That’s like any Communist government operating with willing informants among the people. Only even the Vopos and the Stasi of the German Democratic Republic never trusted their informants with their own weapons. The United States government did.
We can’t let social media off the hook
CNAV does not believe we can let the social media platform operators off the hook so easily. Yes, at certain isolated times, Twitter staff expressed reluctance to obey certain orders that FBI Agent Chan passed along. But most of the time, what Agent Chan wanted, Agent Chan got. And he got it because Twitter staff were willing enforcers for the truth cops. While the government did what they did for their cynical motive of retaining power, Twitter staff acted out of spite. Spite, and the ideological corruption that pervades the political left everywhere.
Interestingly, this same Judge Doughty is hearing the infamous Trusted News Initiative case by CHD and others (see above). If the Southern District of New York thought they’d tossed a hot potato into a quenching pond, they are mistaken. But what will Judge Doughty do about the legacy media, having already found no evidence of a conspiracy between the Missouri defendants and Big Tech? For that matter, why isn’t the case of Loomer v. Meta, Twitter, et al. (or whatever title it has) in Judge Doughty’s court? (CNAV has reached out to Laura Loomer for comment via her Twitter account.)
The Nuremberg defense won’t play here, because other social media platforms have not obeyed the government’s order. Rumble, BitChute, Brighteon, Odysee, and especially Truth Social and Gab, all have refused. Truth Social is a creation of the government’s worst enemy, and Gab has the simplest “content standards” of them all.
Why didn’t Meta, Twitter, Alphabet, and Spotify, with all their resources, disobey the truth cops when they came door banging? Why, indeed, did they collaborate in trying to erase those other platforms from the Internet altogether? Gab has gone so far as to build its own infrastructure, from the ground up; no one can touch them. Elon Musk bought Twitter and revealed much of the censorship regime. But he clearly has troublemakers in his new company, or else must tame a rogue algorithm that is making censorship decisions that, at the very least, are not in keeping with his public pronouncements that censorship is wrong. For that matter, why hasn’t Musk discussed settlement with Laura Loomer? Surely she would be open to cutting Twitter out of the complaint, in exchange for cooperation, in the form of evidence against the other parties.
At least Musk restored her account, and many others – though Jennifer Long recently lost her account. And how long will YouTube get away with their ridiculously complex “Community Guidelines”?
The July 4 injunction against the Missouri defendants represented a good start. But much more work remains. Again, Elon Musk can and should settle and cooperate with Laura Loomer. Who for her part should request a change of venue to the Western District of Lousiana – Judge Doughty’s court. Judge Doughty ought to consider whether Big Tech’s role was, at least in part, voluntary. Justice Clarence Thomas has already said it: State actors, even when private, have no excuse.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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